21 January 2019 — 0208 mst

POTUS, SOTU, and the time bomb in our Constitution

Speaker of the House Nancy Pelosi asked President Trump to delay his State of the Union message until our government is fully open, or to send it to Congress as a written report. That outraged some of his supporters, who accused Pelosi of impinging on his constitutional prerogatives, but although her request was a bit cheeky, it was well within her constitutional powers.

Americans are so accustomed to having the President deliver his SOTU report in person to a joint session of Congress they sometimes forget that the Constitution requires the report, but not that it be delivered in person before Congress:

Article II, Section 3, The Presidency

He shall from time to time give to the Congress information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient;

He may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

He shall receive Ambassadors and other public Ministers;

He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

According to the American Presidency Project at the University of California at Santa Barbara, George Washington and John Adams delivered SOTU speeches to Congress. Thomas Jefferson sent a written report to Congress, where it was read aloud by a clerk, a practice followed by his successors through William Howard Taft.

Jefferson’s practice changed in 1913 with Woodrow Wilson. Wilson believed the presidency was more than an impersonal institution and active and visible presidential leadership was needed by both the people and the Congress. As an expression of this philosophy, Wilson delivered oral messages to Congress, citing the authority of the Constitution.

For health reasons, Wilson did not address Congress in 1919 and 1920. Warren Harding’s two messages (1921 and 1922) and Calvin Coolidge’s first (1923) were also spoken messages. Subsequently, Coolidge’s remaining State of the Unions (1924-28) and all four of Hoover’s (1929-32) were written.

Franklin D. Roosevelt consolidated the modern practice of delivering a spoken State of the Union beginning with his first in 1934. However, there continued to be exceptions. In some cases there was only a written message and no spoken address. These include Truman (1946 and 1953), Eisenhower (1961), and Carter (1981). In some years there were both written messages and oral addresses. Nixon in 1972 presented both an oral address and a written message. In 1973 and 1974, Nixon submitted multiple documents entitled “State of the Union.” Carter also spoke and wrote in 1978, 1979, and 1980. Roosevelt’s last (1945) and Eisenhower’s 4th (1956) were technically written messages although they also addressed the American people via radio summarizing their reports (rather than speaking to a Joint Session of Congress). Scholarly research needs to recognize the variability in these practices.

FDR’s 1944 SOTU address, famous for its inclusion of a Second Bill of Rights, was delivered from the Oval Office as a fireside chat.

Modern SOTU addresses delivered to a joint session of Congress have become undignified campaign rallies, embarrassments to our nation. Reverting to a written message would rescue us from those mortifying extravaganzas.

The time bomb in Section 3

Section 3 also gives the President the power to call Congress into session, and to adjourn Congress without its consent.

The Senate was convened by the President many times throughout the 19th century, frequently for the purpose of confirming nominations.1 In fact, Presidents uniformly convened the Senate for a special session that began on the day of their successor’s inauguration. This was done because, prior to the Twentieth Amendment, one Congress would come to a close before the new President’s inauguration. Had the preceding President not convened the Senate, it would not have been able to consider the new President’s appointments until the start of its next session, which the Constitution sets as the first Monday of the following December. [Memorandum by William Barr, Office of Legal Counsel, 1989. ]

President Harry Truman famously called Congress into session on 26 July 1948:

In accepting the Democratic presidential nomination at 1:45 a.m. in a stifling Philadelphia convention hall, Truman stunned delegates by calling on the Republican majority to live up to its party platform by passing laws that bolstered civil rights, extended Social Security and created a national health care program. “They can do this job in 15 days if they want to do it,” he said.

They didn’t do the job, thus enabling Truman to campaign against the Do Nothing Congress.

But no President has exercised his power to adjourn Congress. Still, it could happen, with or without the collusion of Congress. Section 3’s text seems to limit the power to resolving disagreements over the timing of Congressional adjournments, but an unscrupulous or deranged President could try to bootstrap Section 3 into claiming, and attempting to exercise, a power to adjourn Congress when the President deems doing so is in the national interest. Would President Trump have the chutzpah to do that? What remedy would there be, if any, if he did?